Rice v. Rankans

• Decision Date: 05 July 1894
• Court: Michigan Supreme Court
• Parties: RICE v. RANKANS.

59 N.W. 660

101 Mich. 378

RICE v. RANKANS.

Supreme Court of Michigan

July 5, 1894

Error to circuit court, Ottawa county; Philip Padgham, Judge.

Action by John A. Rice against Geert Rankans on promissory notes. Judgment for plaintiff. Defendant brings error. Affirmed.

Farr & Soule, for appellant.

Walter I. Lillie, for appellee.

MONTGOMERY J.

The plaintiff claims to be the bona fide purchaser of certain written instruments, reading as follows "$960.00. First Mortgage Bond. On the sixteenth day of August, A. D. eighteen hundred and ninety-three, for value received, I promise to pay to the order of Niels C Fredericksen the principal sum of nine hundred and sixty dollars, with interest at the rate of seven per cent. per annum, payable annually, according to the tenor and effect hereof, and of five coupons hereto attached. Both principal and interest are payable at the office of Fredericksen & Co. Chicago, Illinois. If any part of the principal or interest remains unpaid at maturity, it shall bear interest thereafter at the rate of ten per cent. per annum, payable semiannually and if any interest remains unpaid twenty days after due the principal shall become due and collectible at once, without notice, at the option of the holder. If suit is brought to collect principal or interest, I agree to pay attorney's fees. Principal and interest are secured by a mortgage lien, which constitutes the first lien on real estate in Nobles county, Minnesota. [Signed] G. Rankans." Attached to this statement were five coupons, reading as follows: "$67.20. Chicago, Aug. 16th, 1888. Due to the order of Niels C. Fredericksen sixty-seven and 20-100 dollars on the sixteenth day of August, A. D. 1890, without grace, payable at the office of Fredericksen & Co., Chicago, Ill., with interest at the rate of ten per cent. per annum after maturity; this coupon being for the interest due that day upon my note No. 710, of this date, for the payment to the order of said Niels C. Fredericksen of $960.00. [Signed] G. Rankans." The other coupons were of similar import, payable at different dates, and the instruments were indorsed by the payee named. The declaration alleges that these instruments were and delivered in the state of Illinois, and that they constitute, under the law of that state, negotiable promissory notes; the plaintiff alleging that he bought the same for value, before maturity. The defense denied-First, that the instruments in question were negotiable under the law of this state; second, that they were negotiable under the law of Illinois. And defendant offered testimony tending to show that the notes were given without consideration, and were procured by the payee named by fraud, and, having made this proof, contended that error was committed on the trial, in excluding certain examination of the plaintiff, and in the instruction given to the jury as to the necessity of proof of fraud.

Certain questions were asked on the cross-examination of the plaintiff as to whether he pursued the mortgage on the land in Minnesota. The questions were excluded, and he was also asked whether he did not have a large quantity of this paper of the same kind,-some $90,000 worth,-which he sold for $3,000. This was at that stage of the case excluded, and an exception taken. While it may have been proper to have received this testimony upon cross-examination, there was no error to the prejudice of the defendant, for when the witness was called in rebuttal the same questions were put, and the answers which counsel for defendant, in his brief, indicates that he desired to elicit, were drawn from the witness.

It is next urged that the court erred in instructing the jury as follows: "Now, the defendant claims that there was fraud on the part of this plaintiff in obtaining this paper.

The rule of law on this point is that fraud will not be presumed on slight circumstances, but must be clearly proved. Circumstances or mere suspicious are not enough to warrant the conclusion of fraud, and the burden of proving fraud is upon him who complains of it." It is true, as claimed by defendant's counsel, that this instruction, standing...